US embassy cable - 03THEHAGUE1859

UNCLAS SECTION 01 OF 03 THE HAGUE 001859 
 
SIPDIS 
 
SENSITIVE BUT UNCLASSIFIED 
 
STATE FOR EUR, EB, D/HS, S/CT 
DHS FOR INTERNATIONAL AFFAIRS - FRANCIS KINNEY 
JUSTICE FOR DAAG SWARTZ AND OIA/JUDI FRIEDMAN 
BRUSSELS FOR KERBER, WONG, RICHARD 
 
E.O. 12958: N/A 
TAGS: PTER, ASEC, KCRM, CASC, XG, PREL, ECON, ETRD, ETTC, EFIN, NL, EUN 
SUBJECT: COUNTERTERRORISM IN THE NETHERLANDS:  ACQUITTALS 
INSPIRE PUSH FOR TOUGHER LEGISLATION 
 
REFS: A) THE HAGUE 1453; B) 2002 THE HAGUE 3525 and 3531; C) 
 
THE HAGUE 1134 AND 3013 
 
1.  (SBU) Summary:  Recent acquittals of Islamist terrorist 
suspects in two high profile cases (see Ref A) and 
increasing realization that terrorist threats affect the 
Dutch homeland have prompted the government of the 
Netherlands to propose more measures to strengthen 
counterterrorism legislation and law enforcement.  In a June 
24 letter to parliament, Justice Minister Piet Hein Donner 
asked for expanded definitions of terrorism-related 
offenses, closing of several terrorist-financing loopholes, 
more restraints on terrorist networks and improved 
cooperation among Dutch law enforcement institutions.  The 
parliament is expected to endorse the proposals when it 
resumes session at the end of August.  If endorsed, 
legislation will be drafted and submitted to the Council of 
State and parliament for approval in 2004 or later.  Despite 
broad acceptance of the proposals, consensus on specific 
changes will take considerable effort and time. The 
proposals include many - but by no means all - measures we 
have urged the Dutch to implement.  We feel they are overall 
positive steps toward effectively combating terrorism, but 
in some areas do not go far enough.  End Summary. 
 
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TERRORISM A SERIOUS THREAT 
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2. (SBU) The recent acquittal in Rotterdam of all 12 
suspects charged with support of a terrorist organization 
(Ref A) and a similar December 2002 acquittal of four men 
allegedly involved in a plot to bomb the US Embassy Paris 
(Ref B) revealed inadequacies in Dutch law and practice for 
building an evidentiary case, especially with regard to the 
use of intelligence.  The acquittals coincided with heavy 
media attention in May 2003 to the discovery of jihad 
recruiting at a mosque in the southern city of Eindhoven. 
In this atmosphere, Justice Minister Donner (CDA-Christian 
Democratic Appeal) submitted a paper to the Cabinet on June 
20 and a letter to the parliament on June 24 outlining 
proposals to deal more effectively with terrorist 
activities.  The introduction to the paper described the 
terrorist threat within the Netherlands as serious and 
"anything but temporary or simple."  It also reiterated 
Dutch support for international cooperation and their desire 
to play a prominent role in combating terrorism, an attitude 
evidenced by their pioneering implementation of the 
Container Security Initiative. (See Ref C) 
 
3. (SBU) Shortly after September 11, 2001, the Dutch 
government enumerated a 43-point Anti-Terrorism Plan of 
Action and in November 2002 enacted a Terrorist Offenses 
Bill.  Those measures set a framework for improved Dutch 
anti-terrorism protection and prosecution.  However, 
prosecutors and other law enforcement officials agree that 
the post-9/11 measures aren't enough and the recent 
terrorist suspect acquittals proved their point.  Donner's 
new proposals are a continuation of the process of 
developing the Plan of Action and Terrorist Offenses Law but 
go further than previous modifications.  The current 
proposals clearly identify two primary areas where they need 
to do more:  terrorist financing and law enforcement 
cooperation for prosecution. 
 
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PROPOSED CHANGES 
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4. (SBU) Donner's proposals included measures designed to 
expand definitions of terrorism related offenses, close 
terrorist financing loopholes, restrain terrorist networks 
and improve cooperation among law enforcement institutions. 
Some proposals are recommended legislative changes, others 
policy formulations.  Among the more significant proposals 
are the following: 
 
A. Making recruiting for jihad a new, separate, criminal 
offense carrying a maximum of four years imprisonment. 
 
B. Making conspiracy to commit a terrorist offense a 
separate criminal offense. 
 
C. Redefining criminal "participation" in an organization 
that pursues terrorism to include "providing financial or 
other material support." 
 
D. Allowing courts to ban terrorist organizations on asset 
freeze lists and making support to a banned organization a 
criminal offense. 
 
E. Changing the 1977 Sanction Act to provide tools to 
restrain activities of non-corporate terrorist networks. 
 
F. Improving the capabilities for intelligence gathering by 
the AIVD (Dutch intelligence agency) 
 
G. Better coordination of activities and information sharing 
between intelligence services and the police. 
 
H. Developing a new system for protection of critical 
infrastructure and persons. 
 
I. Making more and better use of mechanisms to ensure 
transparency and monitoring of non-profit organizations. 
 
J. Increasing efforts to integrate immigrants into Dutch 
society to prevent radicalization and extremism. 
 
K. Urging the EU to make combating terrorism a cooperative 
priority. 
 
L.  Creating a Joint Committee to Combat Terrorism made up 
of all relevant departments and agencies. 
 
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Some Things Better Left Unsaid - For Now 
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5. (SBU) The Justice Minister's proposals did not include 
specific measures to facilitate the use of intelligence 
information as evidence.  The recent acquittals of terrorist 
suspects were based in large part on the courts' rulings 
that uncorroborated intelligence information could not be 
used as evidence.  Public and political sentiment after the 
acquittals favored changing the law to permit the use of 
intelligence as evidence in certain circumstances.  The 
Secretary General of the Ministry of Justice, Joris Demmink, 
 
SIPDIS 
said in a recent meeting with Assistant Secretary of State 
Beth Jones that the Ministry of Justice was "well informed 
at every stage" of those cases that the evidence was "thin 
or based on intelligence, which would be difficult to use 
for conviction."  Some experts believed the government was 
using the case to demonstrate the need for new laws. 
 
6. (SBU) Donner's proposal, however, skirted the issue.  The 
MOJ's explanation is that this issue is still under judicial 
review (the prosecutor in the Rotterdam case has filed an 
appeal against the court's decision on using intelligence as 
evidence).  If the appellate court accepts the intelligence 
information as evidence or describes circumstances under 
which it could be used, then legislative changes may not be 
necessary.  The June 24 proposal therefore only expresses an 
intention to promote better coordination of activities and 
information sharing between intelligence services and the 
police (4.G. above) - an important point but not specific. 
Even this has provoked warnings from parliament against the 
risk that uncorroborated intelligence could be used as 
evidence in court. 
 
 
 
 
 
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COMMENT:  THE RIGHT DIRECTION 
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7. (SBU) The proposed measures are significant and positive 
steps in tightening the Dutch ability to combat terrorism. 
Specifically in the area of terrorist financing, the 
proposals to redefine criminal participation to include 
financial and material support, to change the 1977 Sanction 
Act and to require more transparency and monitoring of non- 
profits are all topics which we intend to address with the 
Netherlands at the Financial Action Task Force to develop 
best practices.  The proposal to permit "banning" of 
terrorist organizations on freeze list seems to be a more 
political than substantive change.  In the area of terrorist 
prosecution, adding recruitment for jihad to the list of 
terrorism offenses is an important concept in the 
Netherlands which includes a large immigrant Muslim 
population.  However, this will undoubtedly create 
controversy when actual legislative language is proposed 
given the political sensitivities of the Dutch debate on 
social integration. 
 
8. (SBU) The proposal's lack of specific recommendations for 
the use of intelligence information at trial is 
disappointing given the centrality of this issue in the 
recent terrorist suspect trials.  It appears that the Dutch 
will take on this matter in stages.  This caution is 
probably necessary given both political constraints and 
respect for the independence of the judiciary while it 
reviews the cases.  His proposals were also silent on making 
more effective use of infiltrants in criminal 
investigations.  There are strong political sensitivities in 
the Netherlands against their use.  Minister Donner 
announced in May that he is prepared to allow the use of 
infiltrants in terrorist cases under special circumstances 
yet to be determined.  This issue remains a frustrating 
limitation on Dutch investigations and on bilateral law 
enforcement cooperation. 
 
9. (SBU) The Dutch government, a supportive ally in the 
fight against terrorism, clearly recognizes the deficiencies 
of some of its law enforcement mechanisms and is willing to 
make changes.  Facilitating these changes remains our 
biggest challenge in helping the Netherlands effectively 
fight terrorism.  Embassy will continue to work closely with 
the Dutch on these difficult issues.  End Comment.  RUSSEL